General Terms of Business and Delivery
General Terms and Conditions of Business and Delivery
Status: 25.09.2024
1. Scope of application
1.1 The following terms and conditions shall apply to all deliveries and services rendered by Fasel GmbH; any conflicting terms and conditions of the contractual partner/buyer shall be expressly excluded, even if Fasel GmbH does not separately object to their validity in individual cases. Conflicting terms and conditions, shall not be effective.
1.2 These terms and conditions shall also apply to any subsequent transactions of an order, even if they are not expressly agreed again.
1.3 Additional verbal agreements shall only be effective if they have been confirmed in writing by Fasel GmbH; e-mail shall be sufficient to comply with this written form.
2. Offers/Orders
2.1 Orders/purchases shall be confirmed in writing by Fasel GmbH stating the prices at the time of the order confirmation. These prices shall be subject to change if the prices change between order confirmation and delivery/service.
In case of doubt, the prices resulting from the current price list or the current calculation of Fasel GmbH at the time of delivery shall always be applied.
2.2 The same applies to the type and/or design of the goods ordered.
2.3 Cost estimates, drawings or other offer documents are subject to the copyright of Fasel GmbH and may not be distributed or reproduced without the prior written consent of Fasel GmbH.
2.4 All offers of Fasel GmbH may be altered and non-binding, unless they are expressly marked as binding or contain a specific acceptance period.
3. Order Acceptance
An order shall only be deemed accepted if it has been confirmed in writing by Fasel GmbH.
Sales representatives of Fasel GmbH are only authorized to mediate the conclusion of contracts; in particular, be no legally binding declarations, assurances or similar may be given by them for Fasel GmbH.
4. Prices/payment terms
4.1 In case of doubt, the prices determined in accordance with Section 2.1 above are understood to be without packaging, freight collect, duty unpaid and without the applicable VAT, unless the order confirmation states different conditions.
4.2 Prices are generally quoted in euros; if the client also wishes a foreign currency to be shown, only the official exchange rate on the day of the order confirmation can be shown; the exchange rate on the day of delivery is payable.
4.3 The terms of payment and the due dates for payment are set out in the invoice of Fasel GmbH.
4.4 The minimum order value is € 50 per delivery plus freight and packaging costs, plus VAT. If the amount is not reached, a minimum quantity surcharge up to the amount of the minimum order value will be charged.
4.5 The Customer shall not be entitled to declare set-off or reduction against claims of Fasel GmbH, unless the claims to which the Customer is entitled are undisputed or have become res judicata.
Incoming payments shall be offset (in deviation from the statutory provisions) at the discretion of Fasel GmbH against the type of receivables.
4.6 If the Customer defaults in the settlement of claims, if insolvency proceedings are applied for or opened against the Customer’s assets or if other data impairing the Customer’s creditworthiness become known, Fasel GmbH shall be entitled to amend order confirmations already issued and to adapt them to this situation (e.g. advance payment, collateral order, etc.) – without prejudice to any other legal consequences that may arise in addition.
5. Delivery/Performance
5.1 Goods shall be shipped from March – Buchheim; Fasel GmbH shall be exclusively responsible for selecting the carrier. The risk of accidental loss of or damage to the goods shall pass to the Customer upon handover to the carrier. Any claims to which Fasel GmbH may be entitled against the carrier shall already now be assigned directly in cash to the Customer accepting this for assertion in his own name.
5.2 Fasel GmbH shall not assume any liability for compliance with delivery deadlines, unless Fasel GmbH is guilty of intent or gross negligence for the delay.
5.3 Fasel GmbH shall be entitled to make partial deliveries or render partial services; each partial delivery/service shall be deemed an independent transaction. If the Customer effectively declares its withdrawal from the entire order, deliveries or services already provided in accordance with the contract shall not be covered by this in case of doubt. For deliveries/services not yet rendered, any claims for damages or fulfillment are mutually excluded.
5.4 The Customer shall be obliged to accept the goods/services, in particular to notify Fasel GmbH of receipt of the goods. If he fails to do so, the goods shall be deemed to have been received within the time usually appropriate for the specific type of shipment.
5.5 In the case of call-off orders, the entire quantity of goods must be called off and accepted within the agreed time (framework agreement or order confirmation).
If no complete call-off is made in due time, Fasel GmbH shall be entitled to dispatch the (remaining) goods and to invoice them.
5.6 Should Fasel GmbH agree to extend the agreed contract term, financing and storage costs may be charged.
5.7 Deadlines and dates for deliveries and services promised by Fasel GmbH shall always be approximate only, unless a fixed deadline or a fixed date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transportation, unless expressly stated otherwise by us.
5.8 Fasel GmbH shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, lack of labor, energy or raw materials). disruptions of operations of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, difficulties in obtaining necessary official permits, pandemics or epidemics, official measures or the lack of, incorrect or untimely delivery by suppliers despite a congruent hedging transaction concluded by Fasel GmbH) for which Fasel GmbH is not responsible. If such events make the delivery or performance significantly more difficult or impossible for Fasel GmbH and the hindrance is not only of a temporary nature, Fasel GmbH shall be entitled to withdraw from the contract. In the event of hindrances of a temporary duration, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance, plus a reasonable start-up period. If the Customer cannot reasonably be expected to accept the delivery or service as a result of the not insignificant delay, he may withdraw from the contract by immediate written declaration to Fasel GmbH.
6. Retention of title
The ordered goods shall remain the property of Fasel GmbH until full payment of the purchase price or other claims against the purchaser has been made.
The Customer shall be entitled to process and/or sell the goods subject to retention of title in the ordinary course of his business, unless the goods are seized, insolvency proceedings are applied for or opened – the Customer shall notify Fasel GmbH of such circumstances without delay.
The Customer shall immediately take all measures to secure the property of Fasel GmbH.
The Customer hereby irrevocably assigns to Fasel GmbH any claims against third parties arising from the resale/processing of the goods subject to retention of title; Fasel GmbH accepts the assignment by way of security.
7. Warranty
7.1 The warranty period shall be governed by the statutory provisions
7.2 The delivered items shall be carefully inspected by Buyer or a third party designated by Buyer immediately after delivery. They shall be deemed to have been approved by Buyer with regard to obvious defects or other defects which would have been recognizable during an immediate, careful inspection if Fasel GmbH does not receive a written notice of defects within seven working days after delivery. The notice of defects should contain the following information in particular:
-The serial number of the rejected delivery item
-Detailed error description (not handwritten)
-Copy of the invoice for the rejected delivery item
With regard to other defects, the delivery items shall be deemed approved by Buyer if the notice of defects is not received by Fasel GmbH within seven working days after the time at which the defect became apparent; however, if the defect was already apparent at an earlier point in time during normal use, this earlier point in time shall be decisive for the commencement of the notice period. In order to clarify whether a justified defect exists, Buyer shall first return the item complained about to Fasel GmbH at its own expense. In the event of a justified notice of defect, Fasel GmbH shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
7.3 In the event of material defects of the delivered items, Fasel GmbH shall initially be obliged and entitled to repair or replace the goods at its discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, Buyer may withdraw from the contract or reduce the purchase price appropriately. If the rejected item can no longer be repaired, it shall be disposed of by Fasel GmbH free of charge after 14 days, unless Buyer notifies Fasel GmbH in writing within this period that the goods are to be returned to him at his expense.
7.4 If a defect is due to the fault of Fasel GmbH, Buyer may claim damages under the conditions set forth in § 8.
7.5 In the event of defects of parts of other manufacturers which Fasel GmbH cannot remedy for licensing or factual reasons, Fasel GmbH shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the Buyer or assign them to the Buyer. Warranty claims against Fasel GmbH shall only exist for such defects under the other conditions and in accordance with these General Terms and Conditions of Delivery if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, e.g. due to insolvency. For the duration of the legal dispute, the limitation period of the relevant warranty claims of Buyer against Fasel GmbH shall be suspended.
7.6 The warranty shall not apply if Buyer modifies the delivery item or has it modified by a third party without the consent of Fasel GmbH and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the Buyer shall bear the additional costs of remedying the defect resulting from the modification.
7.7 Fasel GmbH warrants the goods sold for a period of two years from the date of delivery to Fasel GmbH, provided that the goods have been properly used/installed/applied by Customer; the burden of proof for this shall be on Customer.
Wear parts are excluded from the warranty.
7.8 The place of performance of the warranty shall be March – Buchheim, i.e. in the event of a warranty claim being asserted, the Customer shall first be obliged to send the goods to Fasel GmbH at its own expense, including a precise description of the malfunction/defect.
Fasel GmbH shall not be obliged to provide warranty services without a description of the defect. If the warranty claim proves to be justified, Fasel GmbH shall be obliged to return the goods to the Customer at its own expense.
7.9 If the Buyer’s complaint cannot be resolved by telephone or e-mail, Fasel GmbH may, at the Buyer’s request, send a replacement device or the appropriate spare part to the address requested by the Buyer for a fee. The Buyer shall receive an invoice for the replacement device or the suitable spare part, which must be paid to Fasel GmbH in accordance with the agreed conditions.
7.10 In the case of development or change orders, special or custom-made products or similar (unless already agreed individually with the customer), the following shall apply:
As a matter of principle, Fasel GmbH does not carry out any research on possible infringements of third-party industrial property rights. Should a third party (also) assert such infringements of rights against Fasel GmbH, the Buyer/Orderer hereby irrevocably indemnifies Fasel GmbH in the internal relationship from such claims. This indemnification shall also include any legal costs incurred in connection with the infringement of industrial property rights.
7.11 For repair orders or repairs outside of guarantee/warranty cases, a flat-rate fee of 50% of the current individual item list price (net) plus VAT shall be charged for all own products such as sauna control units, but at least EUR 50.00 per item.
7.12 A lump-sum payment of 50% of the current purchase price (net) plus VAT is agreed for all contract orders, unless otherwise agreed in advance in individual cases, but at least EUR 50.00 per item.
8. Liability for damages due to fault
8.1 The liability of Fasel GmbH for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tort, shall be limited in accordance with this § 8, insofar as fault is involved in each case.
8.2 Fasel GmbH shall not be liable in the event of simple negligence on the part of its organs, legal representatives, employees or other vicarious agents, unless it is a matter of a breach of material contractual obligations. Essential contractual obligations are the obligation to deliver the delivery item on time, its freedom from defects of title and such material defects which impair its functionality or usability more than only insignificantly, as well as obligations to provide advice, protection and care which are intended to enable the Buyer to use the delivery item in accordance with the contract or which are intended to protect the life and limb of the Buyer’s personnel or to protect the Buyer’s property from considerable damage.
8.3 Insofar as Fasel GmbH is liable for damages in accordance with § 8.2, this liability shall be limited to damages which Fasel GmbH foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which it should have foreseen if it had exercised due diligence. Indirect damages and consequential damages resulting from defects of the delivery item shall only be eligible for compensation if such damages are typically to be expected when the delivery item is used as intended. The above provisions of this para. 3 shall not apply in the event of intentional or grossly negligent conduct on the part of members of Fasel GmbH’s executive bodies or senior executives.
8.4 In the event of liability for simple negligence, Fasel GmbH’s obligation to pay compensation for damage to property and resulting further financial losses shall be limited to an amount of EUR 5,000.00 per case of damage, even if it is a breach of material contractual obligations.
8.5 The above exclusions and limitations of liability shall apply to the same extent in favor of the corporate bodies, legal representatives, employees and other vicarious agents of Fasel GmbH.
8.6 Insofar as Fasel GmbH provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by it, this shall be done free of charge and to the exclusion of any liability.
8.7 The limitations of this § 8 shall not apply to the liability of Fasel GmbH for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
9. Severability clause
Should any of the above provisions be or become invalid, void or unenforceable, this shall not affect the validity of the remaining provisions. The affected provision shall be replaced by a provision that complies with the statutory setz provisions. The same applies to any loopholes.
10. Place of performance/jurisdiction
The place of performance for the services of Fasel GmbH shall be its registered office; the parties agree that the place of jurisdiction for any disputes arising from the business relationship shall be the registered office of Fasel GmbH.
The legal relationship between the contracting parties (based on these General Terms and Conditions) shall be governed exclusively by German law.
March – Buchheim, September 25, 2024